Statements Made By An Accused And Recorded Under Section 67 Of NDPS Act Cannot Be Used As A Confessional Statement: Supreme Court 

Balwinder Singh (Binda) V/S The Narcotics Control Bureau [Criminal Appeal No. 1136 Of 2014]

The Supreme Court ruled that a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

The three judges bench of Justice B.R.Gavai, Justice Hima Kohli and Justice Prashant Kumar Mishra stated that any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

In the instant case the bench observed that once the confessional statement of the co-accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh, there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh under the NDPS Act. On ignoring the said confessional statements recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained. 

The bench opined that Balwinder Singh deserved to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act.

The Apex Court observed that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt. 

It was opined by the court that the prosecution was able to discharge the onus cast on it to prove the foundational facts. Thus, the initial burden of proving that the appellant – Satnam Singh had the knowledge that the car owned and being driven by him at the relevant point in time was being used for transporting narcotics, stood discharged. Once it is concluded that the prosecution had produced adequate evidence to prove beyond reasonable doubt that the accused – Satnam Singh had the knowledge, the presumption contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had a culpable mental state for indicting him for the offence for which he had been charged. 

The incident in question relates back to 11th December, 2005, when as per the version of the prosecution, the Narcotics Control Bureau received secret information that some persons who were indulging in the sale of contraband, were travelling in a white coloured Indica car from Amritsar to supply contraband at a bus stand at Chandigarh. 

Members of the NCB team intercepted the vehicle and searched Satnam Singh in the presence of the independent witnesses. On searching the car, they found two packets wrapped in a khaki tape in the cavity of the door panel. On unzipping the seat cover of the rear back seat of the vehicle, two more similar packets wrapped in khaki tape were recovered.

Mayank Dahiya, counsel for the appellant – Balwinder Singh, argued that his client had been convicted solely on the basis of the purported statement of confession made by the co-accused, Satnam Singh before the NCB officials which is no longer admissible in law.

Counsel for the respondent-NCB has supported the impugned judgment and stated that there was ample evidence brought on record by the NCB for indicting Balwinder Singh and Satnam Singh. He asserted that none of the witnesses produced by the NCB were planted, as alleged; that NCB had successfully established a prima facie case against the appellants whereafter the burden had shifted on them to prove their innocence and that they had miserably failed to discharge the said burden.

The Apex court said that “As has been observed by this Court in the case of Ram Avatar alias Rama (supra), that possession of the contraband is a sine qua non to secure a conviction under Section 21 of the NDPS Act and that such a contraband article should be recovered in accordance with the provisions of Section 50 of the NDPS Act, being a statutory safeguard favouring the accused; otherwise the recovery itself shall stand vitiated in law”. 

The court opined that the appellant – Satnam Singh has failed to make out a case for acquittal. Therefore, the court maintained the order of conviction and the sentence imposed on Satnam Singh. 

However, the bench allowed Criminal Appeal No.1136 of 2014 and the appellant, Balwinder Singh was acquitted.